1 Plaintiff’s original Complaint named Commissioner of Corrections Martin Magnusson(“Magnusson”), Warden Jeff Merrill (“Merrill”), Deputy Warden Nelson Riley (“Riley”), andcorrectional officers Hildane Polky, John Kinghorn (“Kinghorn”), Scott Plaisted (“Plaisted”), andRick Ivey (“Ivey”) as Defendants. On June 16, 1998, the Court dismissed the claims againstMagnusson, Merrill, and Riley. On July 21, 1998, Plaintiff was permitted to file an AmendedComplaint naming James O’Farrell (“O’Farrell”), chief criminal investigator for the MaineDepartment of Corrections, as a defendant.

UNITED STATES DISTRICT COURTDISTRICT OF MAINE

RAYMOND P. BOIVIN, ))

Plaintiff ))

v. ) Civil 97-CV-176-B)

MARTIN MAGNUSSON, et al., ))

Defendants )

ORDER AND MEMORANDUM OF OPINION

BRODY, District Judge

Plaintiff Raymond P. Boivin (“Plaintiff”) filed a Complaint alleging violations of 42

U.S.C. § 1983 (1994) and various state law tort claims against Hildane Polky and four other

correctional officials arising out of incidents occurring on or about April 10-11, 1997 at the

Maine Correctional Institution-Warren (“MCI-Warren”), including Plaintiff’s placement in a

restraint chair for over eight hours.1 On June 16, 1998, the Court granted summary judgment to

all defendants on Plaintiff’s state tort law claims.

Before the Court is Plaintiff’s Motion for Summary Judgment as to the § 1983 claims

against Polky only and Polky’s Cross-Motion for Summary Judgment. For the reasons stated

below, the Court DENIES Plaintiff’s Motion for Summary Judgment and GRANTS IN PART

AND DENIES IN PART Polky’s Cross-Motion for Summary Judgment.

2

I. SUMMARY JUDGMENT

Summary judgment is appropriate in the absence of a genuine issue as to any material fact

and when the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An

issue is genuine for these purposes if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

material fact is one that has “the potential to affect the outcome of the suit under the applicable

law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). Facts may be

drawn from “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affadavits.” Fed.R.Civ.P. 56(c). For the purposes of summary judgment the

Court views the record in the light most favorable to the nonmoving party. See McCarthy v.

Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).

II. BACKGROUND

On April 10-11, 1997, Plaintiff was an inmate at MCI-Warren. At approximately 11:45

P.M. on April 10, an inmate in the cell next to Plaintiff’s started a fire. Because of the resulting

smoke, prison guards evacuated a number of inmates, including Plaintiff, to outdoor individual

exercise pens at approximately 11:55 P.M. Once outside, Plaintiff expressed to one or more

guards that he was experiencing breathing difficulties. Ivey and an Officer Champagne

(“Champagne”) were assigned to bring Plaintiff to the Medical Department.

An altercation between Plaintiff and the two guards occurred at some point on the way to

the Medical Department. The cause of this incident is disputed by the parties. According to

Plaintiff, as the two guards escorted him, Ivey intentionally pushed his thumb into Plaintiff’s arm

in an effort to cause Plaintiff pain. When Plaintiff jerked his arm in reaction to the pain, Ivey and

2 The record does not indicate who ordered that Plaintiff be released from the restraintchair at 8:40 A.M.

3

Champagne seized on this as a pretext to trip and push Plaintiff face down onto the cement floor.

Guards in the vicinity of the scene rushed over and piled on top of Plaintiff. The guards then

picked Plaintiff up and carried him through several passageways into the Receiving Area.

In contrast, Polky (“Defendant”) asserts that while being escorted to the nurse’s area,

Plaintiff tried to break away from Ivey and the other guard and then fought with officers as they

attempted to restrain him.

Once in the Receiving Area, guards removed Plaintiff’s clothes and placed him in a

“restraint chair.” A “restraint chair” is a mechanical device with a number of adjustable straps

used to bind a person. Two straps proceed from the top of each shoulder down across the

individual’s body to a buckle on the opposite side near the waist, similar to the way a car seatbelt

works. Another strap extends across the waist and is locked with a key. Other straps hold the

individual’s ankles against the base of the chair. The seat of the restraint chair is pitched back at

a thirty degree angle in order to keep the individual in the chair by the force of his body weight.

The chair has a recess in the rear where the hands of a person handcuffed behind his back can

rest. There is no neck support.

A Sergeant Bisonnette (“Bisonnette”) made the initial decision to put Plaintiff in the

restraint chair at approximately 12:20 A.M. on April 11, 1998. Plaintiff was released from the

chair approximately eight hours later, at 8:40 A.M.2 Correctional officers maintained a written

Constant Watch Log from 12:20 A.M. to 8:40 A.M. and documented Plaintiff’s time in the

3 On the videotapes, Plaintiff is seated facing away from the camera and all conversationsare inaudible.

4

restraint chair on videotape from approximately 12:45 A.M. to 8:40 A.M.3 (Pl.[’s] Ex[s]. A, C.)

A nurse checked on Plaintiff several times. Both the Constant Watch Log and the videotapes

indicate that during the entire time he was in the restraint chair, Plaintiff sat calmly and without

incident.

Defendant, who served as Shift Commander that night, was not present when Plaintiff

was put in the restraint chair. Kinghorn, who apparently was working as a guard that night,

spoke with Defendant shortly after Plaintiff’s placement in the restraint chair and told Defendant

that Plaintiff had become “unmanageable,” “combative,” and “uncontrollable.” Defendant then

approved the decision.

Defendant spoke with Plaintiff once during his eight hours in the restraint chair, at

approximately 3:11 A.M. During this conversation, Plaintiff asked to be released from the

restraint chair and returned to his cell so that he could sleep, and Defendant refused. Defendant

did not otherwise see Plaintiff or review his status to determine whether it was necessary to keep

him in the restraint chair. When Defendant’s shift ended at 7:00 A.M., he did not brief the

incoming Shift Commander on Plaintiff’s status.

At 5:25 A.M., O’Farrell came to the Receiving Area and questioned Plaintiff about the

fire. Plaintiff asked O’Farrell to have him released from the chair, and O’Farrell refused.

During the eight hours and twenty minutes he was in the restraint chair, Plaintiff was

naked and his hands were handcuffed behind his back. With the exception of his head, every part

of Plaintiff’s body was immobile. Plaintiff asserts that his back, neck, and shoulders ached, that

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he lost circulation in his legs, and that the angle of the seat caused the weight of his body to drive

the handcuffs into his wrists and his back, causing pain. Plaintiff also asserts that he could not

sleep while in the restraint chair.

III. DISCUSSION

Plaintiff asserts that Defendant violated his Eighth Amendment and Fourteenth

Amendment rights by approving his placement in the restraint chair and by failing to remove him

from the restraint chair for over eights hours without adequate justification. Defendant contends

the facts do not support a finding that he violated Plaintiff’s constitutional rights, and in the

alternative, that he is subject to qualified immunity. Before addressing these arguments, the

Court must clarify the applicable legal standard.

A. Applicable Legal Standard

The legal standard applicable to Plaintiff’s claim is determined in part by his precise

detention status. While the Cruel and Unusual Punishments clause of the Eighth Amendment

applies to the claims of persons incarcerated by virtue of a criminal conviction, pre-trial

detainees’ claims of excessive physical force are governed by the due process provisions of the

Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979); Ingraham v.

Wright, 430 U.S. 651, 671 n.40 (1977). Thus, if Plaintiff was a pre-trial detainee, the Eighth

Amendment is inapplicable to his claims and they will be addressed under the Fourteenth

Amendment only.

In his Statement of Material Facts, Plaintiff contends that on the relevant dates, he was a

pre-trial detainee awaiting trial in York County Superior Court. (Pl.[’s] Statement of Material

Facts at 1.) Defendant, on the other hand, asserts that on April 10-11, 1997, Plaintiff was a

4 Local Rule 56 states that factual assertions shall be “supported by appropriate recordcitations.” D. Me. R. 56.

5 Plaintiff is asserting a substantive due process claim under the Due Process Clause ofthe Fourteenth Amendment, not a procedural due process claim.

6

convicted felon serving a 45-day unsuspended portion of a 364-day sentence he received on

March 6, 1997. Defendant directs the Court to a Cumberland County Superior Court “Judgment

and Commitment” form which supports this assertion. (Def.[’s] Statement of Material Facts at

1.)

In his Reply Memorandum, Plaintiff does not address Defendant’s contention that he was

a convicted prisoner, except to say that “[w]hether [Plaintiff] was at the Supermax . . . as a

pretrial detainee or as a convicted person serving a sentence is irrelevant to whether the Due

Process Clause applies.” (Pl.[’s] Reply Mem. at 3 n.1) In light of Plaintiff’s argument that the

Eighth Amendment is implicated in this case, however, the Court must determine Plaintiff’s

detention status. Because Defendant has presented the Court with evidence indicating that

Plaintiff was a convicted felon serving a sentence on April 10-11, 1997, and because Plaintiff has

offered no evidence to the contrary, other than a bare assertion, the Court is persuaded that

Plaintiff was a convicted prisoner, and not a pre-trial detainee, on the dates this cause of action

arose.4 Thus, Eighth Amendment liability is not foreclosed.

The determination that Plaintiff was a convicted prisoner and not a pretrial detainee does

not completely resolve the question of the particular legal standard or standards to be applied,

however. Plaintiff takes the position that Polky’s conduct violated two distinct constitutional

provisions, the Eighth Amendment and the Fourteenth Amendment,5 and that these Amendments

implicate two distinct legal standards, both of which apply to Plaintiff’s claims. Defendant, in

6 A “deliberate indifference” standard survives in other Eighth Amendment contexts. SeeFarmer v. Brennan, 511 U.S. 825 (1994) (applying “deliberate indifference” standard to claim ofinhumane conditions of confinement), Wilson v. Seiter, 501 U.S. 294, 302-04 (1991) (same),Estelle v. Gamble, 429 U.S. 97, 104 (1976) (applying “deliberate indifference” standard whereprison officials failed to attend to prisoner’s medical needs).

7

contrast, contends that where a prisoner asserts a claim of excessive physical force, the Court

must apply an Eighth Amendment standard only. Since both parties agree that at the very least

an Eighth Amendment standard applies, the Court will first identify the applicable Eighth

Amendment standard. The Court will then consider whether a separate Fourteenth Amendment

standard applies.

1. Eighth Amendment

The legal standard to be applied to an Eighth Amendment claim varies according to the

“kind of conduct against which an Eighth Amendment objection is lodged.” Whitley v. Albers,

475 U.S. 312, 320 (1986). The Supreme Court resolved the question of the particular standard to

be applied where a plaintiff alleges that prison officials used excessive physical force in Whitley

v. Albers, 475 U.S. 312 (1986) and Hudson v. McMillian, 503 U.S. 1 (1992). In Whitley, which

involved the claim of a prisoner who had been shot in the leg by prison guards attempting to

quell a prison riot, the Court held that “the question whether the measure taken inflicted

unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a

good faith effort to maintain or restore discipline, or maliciously and sadistically for the very

purpose of causing harm.’” Whitley, 475 U.S. at 320-21. Eight years later, in Hudson, the Court

extended application of the Whitley/Hudson standard to all claims involving allegations that

prison officials employed excessive physical force.6 See Hudson, 503 U.S. at 6-7 (involving

8

prisoner’s allegations that prison guards beat him).

A majority of recent cases indicate that the alleged improper use of restraints by prison

officials is governed by the Whitley “excessive force” standard. See Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996); Williams v. Burton, 943 F.2d 1572, 1575 (11th Cir. 1991); Stenzel

v. Ellis, 916 F.2d 423, 427 (8th Cir. 1990); Price v. Dixon, 961 F. Supp. 894, 897 (E.D.N.C.

1997); Littlewind v. Rayl, 839 F. Supp. 1369, 1372-73 (D.N.D. 1993). But cf. Branham v.

Meachum, 77 F.3d 626, 630 (2nd Cir. 1996) (declining to resolve whether restraint of prisoner

triggered “conditions of confinement” deliberate indifference standard or “excessive force”

Whitley/Hudson standard). Thus, the Court will apply the Whitley/Hudson standard to the

allegations presented in this case.

2. Fourteenth Amendment

Having identified the specific Eighth Amendment standard applicable in this case, the

Court must evaluate Plaintiff’s contention that his claims additionally should be analyzed under a

separate Fourteenth Amendment standard. The Due Process Clause of the Fourteenth

Amendment recognizes a liberty interest in freedom from bodily restraint which “survives

criminal conviction and incarceration . . . [and] . . . involuntary commitment.” Youngberg v.

Romeo, 457 U.S. 307, 316 (1982). Plaintiff’s allegation that he was bound in the restraint chair

for over eight hours unquestionably implicates this constitutional provision. After careful

consideration, however, the Court is persuaded that although Plaintiff’s allegations implicate

both the Eighth and the Fourteenth Amendments, his claims should be analyzed solely under an

Eighth Amendment standard.

As discussed above, in Whitley, the Supreme Court considered the Eighth and Fourteenth

9

Amendment claims of a prisoner who had been shot in the leg by prison guards in the midst of a

riot. See Whitley, 475 U.S. at 314-16. In the course of its analysis, the Court acknowledged that

a single fact pattern might support claims under both the Eighth and the Fourteenth

Amendments, see id. at 327, but rejected the plaintiff’s Fourteenth Amendment substantive due

process claim with the following explanation:

We think the Eighth Amendment, which is specifically concerned with theunnecessary and wanton infliction of pain in penal institutions, serves as theprimary source of substantive protection to convicted prisoners in cases such asthis one, where the deliberate use of force is challenged as excessive andunjustified. It would indeed be surprising if, in the context of forceful prisonsecurity measures, ‘conduct that shocks the conscience’ or ‘afford[s] brutality thecloak of the law,’ and so violates the Fourteenth Amendment, were not alsopunishment ‘inconsistent with contemporary standards of decency’ and ‘repugnantto the conscience of mankind,’ in violation of the Eighth. . . . [We hold] that inthese circumstances the Due Process Clause affords respondent no greaterprotection than does the Cruel and Unusual Punishments Clause.

Id. at 327 (citations omitted).

The Whitley principle was reaffirmed in Graham v. Connor, 490 U.S. 386 (1989), in

which the Court held that allegations which implicate specific constitutional provisions should be

analyzed under those provisions and not under the more generalized concept of substantive due

process. See Graham, 490 U.S. at 392-95. The Court “reject[ed] the notion that all excessive

force claims brought under § 1983 are governed by a single generic standard,” id. at 393, and

specifically held that “all claims that law enforcement officers have used excessive force . . . in

the course of an arrest, investigatory stop, or other ‘seizure’ . . . should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard, rather than under a [Fourteenth

Amendment] ‘substantive due process’ approach.” Id. at 395. In a footnote, the Court cited

Whitley and stated that “[a]ny protection that ‘substantive due process’ affords convicted

7 One explanation for this conclusion is that the introduction of the Whitley/Hudsonstandard has rendered the Eighth and Fourteenth Amendment standards in the context of“excessive force” cases virtually identical. The language which serves as the basis of the Whitleystandard -- ”whether force was applied in a good faith effort to maintain or restore discipline ormaliciously and sadistically for the very purpose of causing harm” -- is taken directly fromJohnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973), a case which articulated the factors to beconsidered under Fourteenth Amendment substantive due process analysis of a prisoner’s claimthat he was subject to an unprovoked assault by a prison guard. See Hudson, 503 U.S. at 7. JudgeFriendly utilized a Fourteenth Amendment standard in Johnson because he deemed a guard’srandom attack on a prisoner not to qualify as “punishment.” See Johnson, 481 F.2d at 1032. Significantly, in the few post-Whitley prisoner cases that have applied separate standards underthe Eighth and the Fourteenth Amendments, the common strand seems to be an inability tocharacterize the alleged conduct as “punishment” within the meaning of the Eighth Amendment. See Leslie v. Doyle, 125 F.3d 1132, 1134-1137 (7th Cir. 1997) (suggesting that substantive dueprocess analysis might be appropriate where plaintiff alleges that prison officials assaulted,framed, or maliciously prosecuted him); Freitas v. Stone, 818 F. Supp. 1333, 1339-40 (D. Haw.1993) (holding that at least where the allegedly unconstitutional action, such as isolated assault byprison guards, does not constitute “punishment,” scope of Fourteenth Amendment liability willexceed scope of Eighth Amendment liability).

10

prisoners against excessive force is, we have held, at best redundant of that provided by the

Eighth Amendment.”7 Id. at 395 n.10.

Numerous Courts of Appeals have relied on Whitley and Graham to find that where

prisoners allege the use of excessive physical force by prison officials in violation of both the

Eighth and the Fourteenth Amendments, these claims should be analyzed under an Eighth

Amendment standard alone. See, e.g., Gravely v. Madden, 142 F.3d 345, 348 (6th Cir. 1998)

(noting that in context of excessive force claims brought by convicted prisoners, Eighth

Amendment, rather than Fourth or Fourteenth, provides applicable legal standard); Berry v. City

of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990) (observing that Eighth Amendment standard

alone applies to prisoners’ allegations of excessive force and failure to protect); Williams v.

Boles, 841 F.2d 181, 183 (7th Cir. 1988) (holding, in case of prisoner who was beaten, maced,

and manually restrained by guards, that Whitley standard alone applied because “‘the Eighth

8 See also James v. Alfred, 835 F.2d 605, 607 (5th Cir. 1988) (relying on Whitley to findthat where plaintiff’s allegations did not give rise to Eighth Amendment claim, they could notgive rise to a substantive due process claim); Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987) (evaluating plaintiff’s claim of excessive physical force in violation of Eighth andFourteenth Amendment claims solely under Whitley Eighth Amendment standard); Pressly v.Hutto, 816 F.2d 977, 979 (4th Cir. 1987) (“[excessive force and failure to protect] claims . . . aremost appropriately assessed under the eighth amendment where both that source and thefourteenth amendment are invoked. The two sources provide essentially congruent protection,but the eighth amendment source is the primary one in this context.”); Parrish v. Johnson, 800F.2d 600, 604 n.5 (6th Cir. 1986) (deciding that where prisoner invoked both Eighth Amendmentand substantive due process theories, his claim would be considered under Eighth Amendmentalone); Rosalie Berger Levinson, Protection Against Government Abuse of Power: Has the CourtTaken the Substance out of Substantive Due Process, 16 U. Dayton L. Rev. 313, 343 (1991) (“Asa practical matter, Whitley eliminated the efficacy of a substantive due process challenge to themistreatment of prisoners.”); Michael J. Phillips, The Nonprivacy Applications of SubstantiveDue Process, 21 Rutgers L.J. 537, 556 (1990) (“After Whitley, although substantive due processoccasionally remains an independent factor in this area, eighth amendment standards generallyprevail in excessive force cases involving prisoners.”).

Although the First Circuit has not squarely addressed this issue, it cited Whitley in thecourse of noting a district court’s decision to treat a complaint alleging violations of both theEighth and the Fourteenth Amendments as solely presenting an Eighth Amendment claim. SeeUnwin v. Campbell, 863 F.2d 124, 127 n.1 (1st Cir. 1988).

11

Amendment’s prohibition against cruel and unusual punishment and any substantive rights . . .

under the Due Process Clause are coextensive’”).8 But see McRorie v. Shimoda, 795 F.2d 780,

784-85 (9th Cir. 1986) (evaluating plaintiff’s claim that he was assaulted by guard under

seemingly distinct Eighth and Fourteenth Amendment standards).

This principle has been reiterated in cases involving the alleged unconstitutional restraint

of prisoners. See Williams v. Benjamin, 77 F.3d 756, 768 (“[P]laintiff’s substantive Due Process

claim adds nothing to his Eighth Amendment claim.”); Williams v. Burton, 943 F.2d 1572, 1576

(11th Cir. 1991) (“[t]he decision in the Eighth Amendment context that restraints were not used

longer than necessary carries the decision on essentially the same Fourteenth Amendment

arguments”); Price v. Dixon, 961 F. Supp. 894, 903 (E.D.N.C. 1997) (“in this situation, the

12

substantive due process analysis under the Fourteenth Amendment parallels the Eighth

Amendment discussions”).

In light of the foregoing precedent, the Court is satisfied that while Plaintiff’s allegations

may give rise to both Eighth and Fourteenth Amendment claims, these claims are to be assessed

solely under the Whitley/Hudson Eighth Amendment standard enunciated above.

B. Merits

In order to show an Eighth Amendment violation, Plaintiff must demonstrate that

Defendant “inflicted unnecessary and wanton pain and suffering” on him. Whitley, 475 U.S. at

327. Evaluation of an Eight Amendment claim requires analysis of both objective and subjective

components. See Williams v. Benjamin, 77 F.3d 756, 761 (4th. Cir. 1996). While the objective

component involves an inquiry into the seriousness of the injury inflicted on the prisoner, the

subjective component delves into the state of mind of the prison official. See Benjamin, 77 F.3d

at 761. Since Defendant does not assert that Plaintiff’s alleged injuries fail to satisfy the

objective component of this inquiry, the Court’s analysis solely focuses on the subjective

element.

In order to grant summary judgment to either party, there can be no genuine issue of

material fact as to whether “force was applied in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475

U.S. at 320-21. Factors relevant to this analysis include: the need for the application of force; the

relationship between the need and the amount of force that was used; the extent of the injury

inflicted; the extent of the threat to the safety of inmates and staff, as reasonably perceived by the

responsible officials on the basis of facts known to them; and any efforts made to temper the

9 Policy 10.5(B)(1) of the Maine Department of Corrections Policy and Procedures statesthat “[t]he Warden, Deputy Warden, Chief of Security, Shift Commander or health carepersonnel may authorize the use of mechanical restrains when it is apparent that a prisoner posesa real and immediate threat to his self [sic] or others or the security of the facility.” (Pl.[’s] Ex.B.) Sergeant Bisonnette, who made the initial decision to place Plaintiff in the restraint chair,apparently did not carry any of these titles on the night in question.

13

severity of the forceful response. See id. at 321. Evaluation of these factors may permit an

inference “as to whether the use of force could plausibly have been thought necessary, or instead

evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a

knowing willingness to occur.” Id.

1. Approval of Plaintiff’s Placement in the Restraint Chair

It is undisputed that the use of the restraint chair at MCI-Warren “shall be limited to those

situations when it is apparent that the client presents a real and immediate threat to the safety of

the client or others or the security of the facility, and only when no other reasonable alternative

exists.” (Pl.[’s] Ex. B.) Plaintiff argues that the Court should determine as a matter of law that

Defendant violated his constitutional rights when Defendant approved Plaintiff’s placement in

the restraint chair without investigating whether Plaintiff posed a “real and immediate threat” and

therefore whether such a measure was necessary. Rather, Plaintiff alleges, Defendant merely

“rubber-stamped” Bisonnette’s decision based on Kinghorn’s after-the-fact conclusory

statements about Plaintiff’s behavior, and did not consider the reasonable alternatives of

returning Plaintiff to an outdoor individual exercise pen or, after the facility was “secure” in the

wake of the fire, to his cell.9 According to Plaintiff, the fact that Defendant had no actual

knowledge of facts indicating that Plaintiff posed a “real and immediate threat” to anyone

supports an inference that Defendant acted with malice.

Defendant first contends that Plaintiff’s claim regarding his initial placement in the

10 Defendant also asserts that at some later point that night, he was told that Plaintiff hadtried to break away from Ivey and Champagne and then fought with officers as they attempted torestrain him. Based on this information, Defendant claims, he then independently determinedthat the decision to restrain Plaintiff was appropriate because Plaintiff’s behavior indicated thathe posed a real and immediate threat to the safety of himself and others and to the security of thefacility, and no reasonable alternative to the restraint chair existed. Defendant contends thatreturning Plaintiff to an individual exercise pen was not a reasonable alternative because he couldnot be managed in that environment, and because he could have incited other inmates in the pensto become disruptive, thereby increasing the threat to inmates, officers, and the security of thefacility.

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restraint chair is not properly before the Court because Plaintiff did not assert such a claim in

either his original or his Amended Complaint. However, “[p]laintiffs proceeding pro se are

entitled to special latitude in the construction of their pleadings.” Glidden v. Atkinson, 750 F.

Supp. 25, 26 (D. Me. 1990). Given that Plaintiff was proceeding pro se when he drafted his

original Complaint, and given that the Complaint references being put into the restraint chair, the

Court concludes that Plaintiff has satisfied the minimum requirements of notice pleading.

In the alternative, Defendant argues that the Court should grant summary judgment in his

favor on this claim because his decision to trust the judgment of Bisonnette and Kinghorn cannot

be construed as malicious or sadistic. Defendant asserts that he did not have time to go into

detail with Sergeant Kinghorn, and that he trusted the judgment of both Bisonnette and

Kinghorn, each of whom served as Shift Commander two to three nights a week and made

restraint chair decisions in that capacity. In addition, Defendant asserts that when serving as

Shift Commander, he routinely delegated to Bisonnette and Kinghorn decisions regarding how to

handle disruptive inmates, including whether or not to use the restraint chair. In assessing their

decisionmaking, Defendant found their judgment to be appropriate.10

While Plaintiff’s allegations may raise a genuine issue of material fact as to whether

Bisonnette was justified in placing Plaintiff in the restraint chair at 12:20 A.M., the issue before

15

the Court is whether, under the circumstances, Defendant violated Plaintiff’s constitutional rights

by relying on the judgment of Bisonnette and on the oral reports of Kinghorn in approving

Bisonnette’s decision. The focus of this inquiry is whether the evidence supports an inference

that Defendant wantonly punished Plaintiff. See Williams v. Benjamin, 77 F.3d 756, 763-64 (4th

Cir. 1996). On the basis of the undisputed facts, the Court concludes that it does not.

It is undisputed that Defendant was told, albeit after-the-fact, that Plaintiff had become

“unmanageable,” “combative,” and “uncontrollable.” Even if Plaintiff’s version of the events

leading up to his placement in the restraint chair is the correct one, the evidence simply does not

indicate that Defendant’s approval of Plaintiff’s placement in the restraint chair was done so

wantonly as to support an inference of malice. Plaintiff does not assert that Defendant had any

reason to distrust the actions or statements of Bisonnette or Kinghorn, nor does Plaintiff suggest

that Defendant ignored evidence contradicting Kinghorn’s statements. In essence, Plaintiff

appears to argue that Defendant had an obligation to hear Plaintiff’s “side of the story” before

approving the use of the restraint chair, or that Defendant simply could never approve a restraint

chair decision made by an officer who was technically unauthorized to take such action in the

first place. To adopt such arguments, however, would be to undermine the necessary

“discretion” held by prison officials in the context of “internal security” matters. Whitley, 475

U.S. at 321.

The Court is satisfied that, based on the information Defendant undisputedly had,

regardless of its ultimate accuracy, no reasonable jury could conclude that Defendant acted with

malice in approving Plaintiff’s placement in the restraint chair. To the contrary, the evidence

supports Defendant’s assertion that he had reason to believe that Plaintiff posed a threat to the

11 Policy 10.5(D)(4) provides that “[r]estraints are to be removed as soon as the behaviorthat poses a threat has been brought under control and no longer poses a threat.” (Pl.[’s] Ex. B.)

16

safety of inmates and staff, that the application of force was necessary, and that use of the

restraint chair was an appropriate exercise of that force. As a result, the Court grants Defendant’s

Cross-Motion for Summary Judgment as to this claim.

2. Failure to Remove Plaintiff from the Restraint Chair

Plaintiff next urges the Court to find as a matter of law that Defendant’s failure to remove

him from the restraint chair for over eight hours violated his constitutional rights. While Plaintiff

primarily focuses on Defendant’s decision at approximately 3:15 A.M. not to release Plaintiff

from the restraint chair, he also notes that Defendant failed to review the necessity of restraining

Plaintiff every two hours, failed to brief the Shift Commander who replaced him at 7:00 A.M. on

Plaintiff’s status, and failed to document in writing the reasons for Plaintiff’s placement in the

restraint chair. These omissions constitute violations of Policies 10.5(D)(1), 10.5(F)(3), and

10.5(F)(1)(c) of the Maine Department of Corrections Policy and Procedures.

In support of his claim, Plaintiff directs the Court to the videotape evidence documenting

his calm demeanor and to the Constant Watch Log, which repeatedly notes that Plaintiff was

“sitting quietly.” (Pl.[’s] Ex. C, A.) These two pieces of evidence indicate that Plaintiff sat

peacefully and without incident throughout the entire period he was in the restraint chair, and

support Plaintiff’s contention that Defendant could not plausibly have considered Plaintiff to

pose a threat to anyone or anything.11 Plaintiff also argues that reasonable alternatives to the

restraint chair existed, including being returned to an individual exercise pen or to his cell.

Plaintiff contends that under these circumstances, Defendant’s decision to leave Plaintiff in the

restraint chair supports an inference of malice.

17

Defendant, in contrast, contends that the record supports a grant of summary judgment in

his favor because Plaintiff cannot point to any facts supporting an inference that Polky’s action or

inaction was motivated by malice. First, Defendant asserts that his 3:15 A.M. decision not to

release Plaintiff from the restraint chair was based on his belief that if released, Plaintiff would

misbehave in such a way as to threaten himself, others, and the security of the facility.

According to Defendant, a number of factors led him to this conclusion: (i) Defendant believed

that Plaintiff had conspired with another inmate to set the fire and to hurt or kill prison officers;

(ii) Defendant believed that Plaintiff’s earlier conduct was part of a strategy to get himself to the

Receiving Area, where the inmate who had started the earlier fire had been taken; (iii) Plaintiff

had a tendency to induce confrontations with prison staff, feign calming down upon being

restrained, and then “act up” again; (iv) Defendant suspected that Plaintiff would attempt to

“show off” in front of fire and correctional personnel present at the facility; and (v) Defendant

interpreted Plaintiff’s body language and speech patterns during the conversation, including a

failure to maintain eye contact, to indicate that Plaintiff was not being truthful when he said he

would not misbehave again. Defendant does not contend that Plaintiff, once restrained, did

anything that required an application of force, nor does Defendant assert that Plaintiff verbally

assaulted or threatened prison officials.

Second, Defendant contends that his departures from established prison procedures were

justified and in no way constitute evidence of malice. Defendant claims that he had extra duties

related to the fire and its consequences and that he checked on Plaintiff as soon as he was able.

In addition, Defendant claims that after his 3:11 A.M. conversation with Plaintiff, he was

assigned to other duties and relieved of responsibility relating to Plaintiff, and therefore, he

12 Defendant also asserts that at no relevant time did Plaintiff or the nurse on dutycommunicate to him that Plaintiff needed to be removed from the restraint chair for a medicalreason, including pain. Nor, according to Defendant, did Plaintiff appear to be in pain when hespoke with him.

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thought that other prison supervisors would check on Plaintiff and brief the next Shift

Commander.12

While courts should defer to the good judgment of prison officials regarding the length of

time a restraint mechanism may be employed, “[d]eference to prison officials does not give them

constitutional license to torture inmates.” Williams v. Benjamin, 77 F.3d 756, 765 (4th Cir.

1996) (denying defendant’s motion for summary judgment in part where inmate was held in four-

point restraints for eight hours and was not permitted to wash mace off face, use toilet, or receive

medical attention during that time). Violations of internal policies do not establish the existence

of a constitutional violation, but such violations may support an inference that a prison official

acted with a culpable state of mind. See Benjamin, 77 F.3d at 766.

With these principles in mind, the Court is persuaded that genuine issues of material fact

exist as to Defendant’s reasons for failing to release Plaintiff from the restraint chair and

therefore preclude a grant of summary judgment to either party. Although Defendant has

presented a number of security-related reasons for keeping Plaintiff in the restraint chair, Plaintiff

has raised questions about the truthfulness of several of these asserted justifications. For

example, while Defendant’s Affadavit references a belief that Plaintiff had conspired with

another inmate to set the fire and to harm prison officers (Polky Aff. ¶ 5.), Defendant testified at

his deposition that he did not believe Plaintiff was responsible for the fire. (Polky Dep. at 33.)

In addition, Defendant’s asserted suspicion that Plaintiff had plotted to get himself to the

Receiving Area in anticipation of joining another inmate supports an inference not only that

13 This principle is echoed in Policy 10.5(A)(4): “Mechanical restraints shall never beused to punish or discipline a prisoner.” (Pl.[’s] Ex. B.)

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Plaintiff might have posed a “real and immediate threat” to prison security, but also that

Defendant intended to “punish” Plaintiff for this alleged “plot.” It is never constitutionally

permissible to use restraints to punish a prisoner.13 See Benjamin, 77 F.3d at 765; Williams v.

Vidor, 17 F.3d 857, 863 (6th Cir. 1994) (Jones, J., concurring in part and dissenting in part);

Moreover, if Defendant’s concern was that Plaintiff would act in concert with the other inmate to

cause a disruption in the Receiving Area, the record indicates that this concern could only have

been short-lived: the inmate was transported to a hospital at 12:47 A.M., less than one half-hour

after Plaintiff was placed in the restraint chair. (Polky Dep. Ex. 1.)

Finally, Plaintiff challenges Defendant’s allegation that Plaintiff’s body language and

speech patterns during their 3:11 A.M. conversation betrayed an intention to agitate again. While

the videotapes do not facilitate an effective assessment of this issue, given that every portion of

Plaintiff’s body was bound except for his head, the Court concludes that a genuine issue of

material fact exists as to what body language Plaintiff exhibited under those conditions. If

Defendant is solely referring to a failure to maintain eye contact and to Plaintiff’s choice of

words, alternative explanations for this conduct exist, including the respective physical positions

of the two men and the fact that Plaintiff had not slept at all that night.

Because factual questions exist as to Defendant’s state of mind, the Court is unable

determine as a matter of law that Defendant’s conduct was undertaken “maliciously and

sadistically for the very purpose of causing harm,” nor is it able to decide as a matter of law that

Defendant’s actions were part of a “good faith effort to maintain or restore discipline.” As a

result, the Court denies both Plaintiff’s Motion for Summary Judgment and Defendant’s Motion

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for Summary Judgment as to this claim.

C. Qualified Immunity

Since the Court has determined that Plaintiff cannot sustain a claim relating to his initial

placement in the restraint chair, the Court will address the issue of qualified immunity only as it

relates to Defendant’s failure to remove Plaintiff from the restraint chair for over eight hours.

Qualified immunity analysis is two-fold: (i) has the plaintiff alleged the violation of a clearly

established right, and (ii) should a reasonable, similarly situated official have understood that the

challenged conduct violated a clearly established right? See Swain v. Spinney, 117 F.3d 1, 9 (1st

Cir. 1997); Comfort v. Town of Pittsfield, 924 F. Supp. 1219, 1227 (D. Me. 1996).

The above test reflects the Supreme Court’s embrace of an objective qualified immunity

standard. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Prior to Harlow, qualified

immunity analysis rested on both objective and subjective components: a plaintiff could defeat a

claim of qualified immunity if he showed that the defendant reasonably knew or should have

known that his actions violated the plaintiff’s constitutional rights, or if he showed that the

defendant acted maliciously to cause a constitutional deprivation. See Wood v. Strickland, 420

U.S. 308, 322 (1975).

Application of the Harlow standard to cases like the one at bar, where the defendant’s

subjective mental state is an element of the claimed constitutional violation, presents difficulties:

how can a court determine that a prison official acted with deliberate indifference or malice in

applying unconstitutional excessive force, and yet simultaneously conclude that it was

objectively reasonable for the official to believe that his conduct did not amount to a

constitutional deprivation? See McMillian v. Johnson, 101 F.3d 1363, 1366-69 (11th Cir. 1996)

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(Probst, J., concurring) (“I find it difficult to see how [claims involving subjective intent] can be

determined at the summary judgment stage [based on qualified immunity] if there is any

substantial evidence of an illegal motive”); Koch v. Ricketts, 82 F.3d 317, 319 (9th Cir. 1996)

(holding inconsistent jury verdict finding that guards had violated Eighth Amendment under

“deliberate indifference” standard, but were entitled to qualified immunity); Bates v. Jean, 745

F.2d 1146, 1152 (7th Cir. 1984) (holding inconsistent special verdict finding prison official’s

conduct to be “shocking,” “callous,” and “brutal,” but also shielded by qualified immunity);

Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir. 1984) (“A finding of deliberate indifference is

inconsistent with a finding of good faith or qualified immunity.”), rev’d on other grounds, 475

U.S. 312 (1986).

The Court is persuaded that, in this case, the existence of genuine issues of material fact

as to whether Defendant acted with malice precludes a finding of qualified immunity. See Hill v.

Shelander, 992 F.2d 714, 717 (7th Cir. 1993) (upholding district court’s denial of qualified

immunity under Whitley/Hudson standard where factual dispute existed as to whether defendant

acted with malice when he physically assaulted prisoner); Elliot v. Cheshire County, 940 F.2d 7,

11-12 (1st Cir. 1991) (partially vacating grant of summary judgment to defendants based on

qualified immunity where plaintiff raised genuine issue of material fact as to defendants’

“deliberate indifference”); Rosen v. Chang, 811 F. Supp. 754, 760-61 (D.R.I. 1993) (declining to

extend qualified immunity where factual questions existed as to defendants’ alleged “deliberate

indifference”).

IV. CONCLUSION

For the reasons discussed above, the Court DENIES Plaintiff’s Motion for Summary

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Judgment, GRANTS Defendant’s Cross-Motion for Summary Judgment as to Defendant’s

authorization of Plaintiff’s placement in the restraint chair and DENIES Defendant’s Cross-

Motion for Summary Judgment as to Defendant’s failure to remove Plaintiff from the restraint

chair.

SO ORDERED.

________________________ MORTON A. BRODY United States District Judge

Dated this 22nd day of December, 1998.